A Special Inquiry Regarding the Accuracy of FBI Statements Concerning its Capabilities to Exploit an iPhone Seized During the San Bernardino Terror Attack Investigation, March 2018

Background

According to the document:

“On December 2, 2015, a terror attack in San Bernardino, California killed 14 people and injured 17 others. The next day, the Federal Bureau of Investigation (FBI) seized pursuant to a search warrant the iPhone of one of the subjects believed to have been responsible for the attack, Syed Rizwan Farook. Thereafter, on February 9 and March 1, 2016, then-FBI Director James Comey testified before Congress, in substance, that the FBI was not able to obtain access to data on the Farook iPhone, and then that it would require assistance from the manufacturer, Apple, to do so. To accomplish this, on February 16, 2016, the U.S. Attorney’s Office for the Central District of California (USAO) sought and obtained an ex parte court order requiring Apple to assist the FBI in its effort to search the iPhone.

A few days later, the USAO filed a motion with the Court seeking to compel Apple’s compliance with the ex parte order, and Apple filed a motion to vacate the order. However, on March 21, 2016, before the District Judge ruled on these pending motions, the USAO reported to the Court that an outside party had demonstrated to the FBI a possible method for unlocking the iPhone. One week later, on March 28, 2016, the USAO reported back to the Court that the FBI had successfully accessed the iPhone and no longer required assistance from Apple. On April 19, 2016, then- FBI Executive Assistant Director (EAD) Amy Hess testified about the matter before Congress and cited rapidly changing technology as a reason the FBI was not able to exploit the iPhone without the assistance of a third party.

On August 31, 2016, the Office of the Inspector General (OIG) received a referral from the FBI Inspection Division after former EAD Hess expressed concern about an alleged disagreement between units within the FBI Operational Technology Division (OTD) over the “capabilities available to the national security programs” to access the Farook iPhone following its seizure, and concerns that this may have resulted in her or Comey giving inaccurate testimony to Congress on the FBI’s capabilities. Specifically, EAD Hess expressed concerns that an OTD unit may have had techniques available to exploit the Farook iPhone that certain unidentified OTD officials did not employ and that these officials were indifferent to the fact that FBI leadership and others were testifying to Congress, and filing affidavits in court, that the FBI had no such capability. The OIG has conducted inquiries into the situation, including interviewing relevant key participants, and found no evidence that OTO had the capability to exploit the Farook iPhone at the time of the Congressional testimony and initial court filings. We therefore determined that neither the Congressional testimony nor the submissions to the Court were inaccurate when made. However, we found that inadequate communication and coordination within OTO caused a delay in engaging all relevant OTO personnel in t he search for a technical solution to the Farook iPhone problem, as well as the outside party that ultimately developed the method that unlocked the phone, issues that we learned the FBI has since taken steps to address.”